Mining in Colombia: the impunity of Cerro Matoso

October 29, 2018 00:21

Recently the Constitutional Court ruled in favour of the mining company. In March, the Zenú indigenous peoples affected by the company’s activities won the right to be compensated. However, the decision of the high court annuls the victory and those responsible for the deterioration of the environment and the health of these people will not be punished.

Virginia Moreno Molina

For decades, toxic emissions from the Cerro Matoso mine have irreversibly impacted the health and well-being of the Zenú indigenous peoples, located in the department of Córdoba, Colombia.

There have been cases of deformities, acid rain, cancer and skin afflictions, along with irreparable damage to the environment.

Since May 2015, this mine has been the property of South 32, a multinational British-registered company. Its previous owner was BHP Billiton, which held its concession for approximately 30 years.

And although there have been different owners, the mining development has never worked for the benefit of neighbouring communities. In fact, in this case, the Zenú people are one of the 34 groups of indigenous peoples who are at risk of cultural and physical extinction, according to the 2009 ruling of the Colombian Constitutional Court.

Abandoned by justice

Although the conflict dates from the beginning of mining activity in Cerro Matoso, it was not until 2012 that the legal complaints began to be raised.

Eight indigenous and Afro-American communities came together to oppose the multinational. Irrael Manuel Aguilar Solano (who was previously interviewed on the subject by The Prisma) is the former chief of the Zenú community, its current leader in this struggle and the one who began to call the attention of the authorities and the company to this problem in 2001.

“Some people called us crazy and deranged because according to them, the mining operation at Cerro Matoso was a model for the world,” explains Javier de la Hoz, a lawyer representing indigenous communities.

After several failures of first and second instance, in 2017 the Constitutional Court ruled in their favour, ordering the protection of the rights to prior consultation, health and a safe environment, among others.

As a consequence of this, “compensation was ordered in favour of the communities due to the damage caused by the exploitation of the mine and proven in the judicial process,” the lawyer confirmed. Likewise, the creation of an ethno-development fund was ordered for the collective reparation of the communities, as well as comprehensive health care for them.

However, before the company’s appeal, the Constitutional Court, “in a clearly regressive decision, declared the order null, referring to the compensation and ethno-development fund, ignoring the clear jurisprudential precedents of the court itself,” he explains.

Pressures

There have also been controversial situations during the case. “In the middle of the discussion of the nullity proposed by the mining company, the president of the Constitutional Court was forced to retire from the debate because he speculated about the case in the national media,” says De la Hoz.

Irrael Manuel Aguilar Solano

In addition, according to several media sources, “the magistrates in session were discussing the amount of the fees that the lawyers would earn, an absolutely inadmissible circumstance”.

Javier has also received some threats in the past when he began as legal representation for the communities. However, he explains that these pressures are “fuel” to continue the battle.

Javier de la Hoz is a lawyer for Lawyers Enterprise, a company that has represented the communities since they began legal action 6 years ago. De la Hoz spoke to The Prisma about the Constitutional Court’s ruling and the great legal battle against mining in Cerro Matoso.

What does the new ruling of the Constitutional Court mean for the communities that live there?

As the indigenous governors and president of the community council of black communities state, the court is condemning them to death, because, although it protects the fundamental rights and declares the very serious health effects proven, it has also decided that compensation was not appropriate in this case. And this is, according to them, because the protection act was not created to obtain compensation.

With this position, the Court itself is ignoring its own precedent, since in no less than twenty sentences it accepted that compensation for damages could be obtained.

How do you explain that a court judge who approves the payment of compensation in December 2017, 8 months later changes their mind and decides to vote against their own ruling and declare it null and void?

Why do you think the Constitutional Court reached this resolution?

The general perception is that strong pressures were exerted by the mining guild of Colombia. And I say perceptions because to date, all that is known is from a press release where the court announces its decision, but the judicial ruling has not yet been published.

This is something that, those of us who practice the profession in Colombia, criticise and do not understand.

For some time, the Colombian Constitutional Court has been announcing its rulings through press releases. It is an absurd matter that has no explanation. It is not understood, but we only have that press release where the court states that it partially annulled the judgement against Cerro Matoso.

What type of external interference has there been to procure this result?

We know that this company is a very powerful multinational that, on lawyers alone, spent just over fourteen million dollars between 2014 and 2017, but that also manages a very strong lobby. At this point I would like to emphasize that this mining company, until a few hours before the decision was issued in December 2017, was represented by a former president of the same court.

There is an open battle between the defenders of the mine and the communities on the social networks. How is this confrontation taking place on the ground?

Some groups of workers and contractors on the mine promoted wars on social networks that even led to insults and slander against members of the communities and the team of lawyers who represent them. This confrontation is palpable in the meetings of prior consultation where the discussions turn, on occasion, quite complicated.

Has there been any reconciliation from the company?

No. On the contrary, its position is one of arrogance and absolute high-handedness without caring about the consequences against the communities.

Photo: Wikipedia

What are the principal points required to win this legal battle?

Basically, what we seek is the vindication of the fundamental rights of the communities, which were ignored for more than thirty-seven years, not only by the mining company, but also by the Colombian state.

What is the next step?

We are going to the Inter-American Human Rights System. A petition for precautionary measures has already been put down before the Inter-American Commission on Human Rights and we are preparing other actions internationally, specifically in London, with a couple of alliances with law firms and non-governmental entities that are based in the British capital.